P L D 1969 Karachi 87 (PLP)

GHULAM SAFDAR SHAH, J.‑This petition has come on remand from the Supreme Court of Pakistan (under the following circumstances) for disposal according to the principles enunciated in the case of Ghulam Jilani v. The Government of West Pakistan (P L D 1967 S C 373). On 11th August 1966, Mr. Ahmad Sadiq, the then Deputy Commissioner, Karachi in exercise of the powers delegated to him by the Government of West Pakistan under Notification No. 9‑56‑H‑Spl‑1/65, dated 20th September 1965, read with Notification No. 9‑86‑Spl‑1/65, dated 7th February 1966 passed the impugned order (under clause (b), sub‑rule (1) of rule 32 of the Defence of Pakistan Rules, 1965) directing that Mir Abdul Baqi Baluch, the present petitioner, be arrested forthwith and detained until further orders in the Central Prison, Karachi. The said order was in these terms: Whereas I, Ahmad Sadik, C. S. P. Deputy Commissioner, Karachi, on consideration of the reports and all other attending circumstances, am satisfied that Mir Abdul Baqi Baluch, son of Mian Khan, at present in P. E. C. H. S., Karachi was engaged in inciting persons to acts of lawlessness, disaffection amongst people and encouraging persons to commit acts of violence against the Government established by law, in the District of Karachi, in the last week of June 1966, and in the second and fourth weeks of July 1966, and is likely to continue to be engaged in prejudicial activities which are likely to seriously disturb and endanger public peace and peaceful conditions in the District of Karachi ; . . . .And, whereas, with a view to preventing the said Mir Abdul Baqi Baluch, son of Mian Khan from acting in a manner prejudicial to public safety, maintenance of public order and peaceful conditions in the District of Karachi, it is necessary that he be arrested and detained. Now, therefore, I, Ahmed Sadik, C. S. P., Deputy Commis sioner, Karachi, in exercise of the powers delegated to me by the Government of West Pakistan, by virtue of Notification No. 9‑56‑H‑Spl‑1/65, dated the 20th September 1965, read with Notification No. 9‑86‑H‑Spl‑1/65, dated 7‑2‑1966 under rule 32 of the Defence of Pakistan Rules, 1965, hereby direct that the said Mir Abdul Baqi Baluch be arrested forthwith, under clause (b), sub‑rule 1, rule 32 of the Defence of Pakistan Rules, 1965 and be detained in the Central Prison, Karachi, until further orders. I further direct that he be treated as a Class I detenu. During such detention the said Mir Abdul Baqi Baluch shall be subject to the conditions laid down in West Pakistan Public Order Detenu Rule, 1962."

2. The petitioner was arrested on 11th August 1966 and lodged at the Central Prison, Karachi. After sometime he was transferred to the Central Jail, Bahawalpur, from where he sent this petition, through the Superintendent of that jail, to the senior Judge of the High Court of West Pakistan, Karachi Bench, Karachi. On 13th December 1966, Rule nisi was issued by a Division Bench for 17th January 1967, when Mr. G. A. Brohi, an Advocate of this Court appeared for the petitioner and Qazi Akhtar, Additional Advocate‑General for the respondents except for the Government of Pakistan for whom Mr. Shah Jamil Alam, an Advocate of this Court made an appearance, but withdrew from the case on personal grounds after he sought permission of the Court.

3. It would be unnecessary to recapitulate in any great detail the facts alleged in the petition from which the petitioner attempted to prove mala fides and the colourable exercise of power on the part of the respondent. Stated briefly the validity of the impugned order was questioned on the following grounds (1) That the grounds upon which the impugned order was passed were false and fictitious and had no factual basis. (2) That the order was passed in the colourable exercise of power for purposes which were wholly ulterior and had no relation to the purposes for which an order of detention could be made under rule 32 of the Defence of Pakistan Rules. (3) That the order was beyond the scope of rule 32 of the Defence of Pakistan Rules. (4) That the detaining authority had not applied his mind to the necessity of detention nor did he act in accordance with law. (5) That the order had been passed wholly mala fide and arbitrarily.

4. These allegations were controverted by Mr. Ahmad Sadiq, the then Deputy Commissioner himself, through a counter affidavit. He maintained that the order of detention had been passed on the basis of credible and reliable information placed before him that the petitioner was secretly in league with certain criminals, out‑laws, decoits, etc., who were engaged in committing murders, looting and arson in some of the neighbouring districts of Karachi. According to him, occasionally public transport buses were attacked and looted, public servants were ambushed and murdered in these districts and sufficient material was placed before him to show that the petitioner was attempting to create similar conditions in the district of Karachi by inciting persons to acts of lawlessness and disaffection against the Government established by law. Mr. Ahmad Sadiq, however, by a subsequent affidavit claimed privilege from the production of the material upon which he was satisfied to pass the impugned order on the ground that it would be against public interest. After the exchange of few more affidavits by the parties, the arguments were concluded on 10th February 1967, and the petition dismissed by judgment dated 20th March 1967.

5. The High Court in dismissing the petition had mainly relied upon the dictum of the House of Lords in the case of Liversidge v. Anderson ((1941) 3 A E R 338) according to which in cases of detention of the present kind the satisfaction of the detaining authority was merely subjective, and that it was a sufficient answer to the writ to show that on the grounds stated in the order itself the detaining authority was satisfied as to the necessity of passing the detention order. When about a month and a half later the Supreme Court of Pakistan came to the contrary conclusion in the case of Ghulam Jilani v. Government of West Pakistan, the said judgment was set aside in appeal, which was filed against it by the petitioner, and as already mentioned the case remanded to this Court for disposal in accordance with the principles enunciated in Ghulam Jilani's judgment.

6. Before entering upon the consideration of the merits of this petition, mention may be made of certain facts which appeared to be of some importance. After the petitioner's appeal was allowed by the Supreme Court and the case remanded to this Court for disposal, he made an application on 27th May 1968, to the Chief Justice of the High Court of West Pakistan and prayed that since he had remained in detention for twenty‑one and a half months his. case may be heard at Lahore during summer vacations. He further prayed that the respon dents be ordered to produce in Court all material upon which they were satisfied that his detention was necessary. The learned Chief Justice vide his order dated 30th May 1968, did not agree that the case should be heard at Lahore, and conse quently marked it to the Senior Judge of Karachi Bench for early disposal during vacations. Accordingly, when the case was received in, the Registry of this Bench, it was put up before the learned Senior Judge, who, on 13th June 1968, marked it to this Bench for disposal. On 14th June 1968, we issued notices to the respondents for 25th June 1968; and also directed them to produce in. Court all the material upon which the detaining authority was satisfied, as to the necessity of passing the impugned detention order. We further directed the respon dents that the petitioner should also be produced in Court on that date and on all subsequent dates until the petition was finally heard.

7. On 25th June 1968, the petitioner appeared in person in custody, while Mr. Muhammad Haleem, Assistant Advocate- General and Mr. Saeed A. Shaikh, Advocate appeared for the respondents. The learned Assistant Advocate‑General placed before us the entire documentary material along with the affidavit of Mr. Ahmad Sadiq, in an effort to show that before passing the impugned order Mr. Ahmad Sadiq was completely satisfied as to the desirability of the petitioner's detention, A complete set of these documents was supplied to the petitioner in Court who then moved two applications ; one for obtaining a copy of the Supreme Court judgment delivered in his appeal and the other for directions to respondents 2 to 6 to produce in Court all the Government record relating to his detention. He further prayed that Mr. Ahmad Sadiq, the detaining authority and: the present Deputy Commissioner, Karachi be also. summon ed for examination in Court. So far as his first application was concerned, the learned Assistant Advocate‑General supplied him a copy of the judgment of the Supreme Court of Pakistan, but we dismissed his second application as premature on the ground that it was the burden of detaining authority to produce for our scrutiny all material on the basis of which he was satisfied as to the necessity of taking the impugned action. However, we observed in our order that after the said material was produced in Court the petitioner, if he then realised that some evidence, which was, favourable to him, was not produced by the respondents, would be at liberty to file a fresh application for that purpose subject to the right of respondents to claim privilege under sections 123 and 124 of the Evidence Act.

8. The learned Assistant Advocate‑General then filed an application under section 22 of the West Pakistan Press and Publication Ordinance (hereinafter called the Ordinance), supported by the affidavit of Mr. Ahmad Sadiq, with the prayer that no part of the proceedings of this case should be published in newspapers or otherwise in public interest. A copy of that application was supplied to the petitioner in Court who expressed his desire to, file objections against it by way of counter‑affidavit: Since the petitioner was un-represented; he prayed that in line with the procedure, which had been adopted by the Supreme Court of Pakistan during the hearing of his appeal; the Court might, request the President of the Karachi High. Court Bar Association if any Advocate would be willing to assist: him in the conduct of these proceedings. We accordingly passed an order to that effect, and thereafter by consent of the parties the case was adjourned to 9‑7‑1968 for the hearing of application and to 11‑7‑1968 for hearing of the main petition. On 9th July 1968, Mr. Khalid Mi. Ishaq, the learned Advocate appeared for the petitioner when application under section 22 of the Ordinance was heard. After anxiously applying our mind to the contents of the documentary material placed before us by the respondents (which was highly seditious and full of derogatory and disparaging comments upon the high placed dignatories of the State), we allowed that application by order dated 11th July 1968, and directed that the proceedings would be held in camera, and that no part of it would be publish ed in any newspaper or otherwise without the prior approval and permission of the Court.

9. On 12th July 1968, Mr. Ahmad Sadiq, the detaining authority, filed an affidavit with a view to claiming privilege under section 123 of the Evidence Act, from producing the secret reports, relating to the activities of the petitioner, which he had received from the law‑and‑order enforcing agencies of the Government. However, on 15th July 1968, Mr. Ahmad Sadiq filed an application stating that he did not claim‑ any such privilege; and that the secret reports in question would be placed before the Court. Accordingly, these reports were produced on the record of this case, whereafter the proceedings were conducted from day to day except when on a joint request of the parties they were to the adjourned.

10. Apart from the documentary material, which was placed before us by the respondents, Mr. Ahmad Sadiq, the detaining authority and Mr. S. K. Mahmood, the present Deputy Commissioner, Karachi both stepped into the witness box and gave evidence ;, the former in support of the impugned order and the latter as to the desirability of continuing the petitioner's detention. Besides, a number of affidavits were exchanged between the parties ; the respondents justifying their impugned action and the petitioner contending that it was taken for wholly ulterior purposes, with mala fides and in the colourable exercise of jurisdiction by the detaining authority. Since Mr. Ahmad Sadiq was examined and cross‑examined in regard to the impugned order, reference to the contents of the said affidavits of the parties would be unnecessary unless it was upon a point which escaped treatment in the, evidence of Mr. Ahmad Sadiq.

11. Before proceeding further let us catalogue the nature of the documentary material placed before us by the respondents which is as follows: (1) Report dated 28th July 1966 (Exh. 2) addressed to the Deputy Commissioner, Karachi by Mr. Yar Muhammad, Superintendent of Police, Special Branch, Karachi. (2) Report dated 6th August 1966 (Exh. 3) sent to the Deputy Commissioner, Karachi by Mr. Nisar Ahmad, P. S. P. Superintendent of Police, East Division, Karachi. (3) "Young Democrat"‑an Urdu written pamphlet‑Exh. 4. (4) "Baluchistan"‑an Urdu written pamphlet‑Exh. 5: (5) "Pakistani Bhaiyun kay nam"‑an Urdu written pam. phlet‑Exh. 6. (6) "Baluchistan Main kia ho raha hai"‑a copy of Urdu written speech which, as Member of the West Pakistan Assembly, the petitioner had delivered on the Floor of the House‑Exh. 7. (7) A copy of the First Information Report dated 3rd June 1965, lodged at Rambagh Police Station, Karachi by Mr. S. Shaukat Ali, Inspector C. I. A., Karachi under section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960, read with section 124‑A, P. P. C. after "Young Democrat" (Exh. 4) was detected in circulation‑Exh.

8. On our order, all these documents have been translated in English.

12. Before scrutinising the material in question, it would be proper to re‑produce the relevant principles laid down by the Supreme Court of Pakistan in Ghulam Jilani's case upon the basis of which we are required to dispose of this petition. These are as follows: "(Pp. 392‑393).‑Under the Constitution of Pakistan a wholly different state of affairs prevails. Power is expressly given by Article 98 to the superior Court to probe into the exercise of public power by executing authorities, how high so ever, to determine whether they have acted with lawful authority. The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities" may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own "satisfaction" for imposing restraints on the enjoyment of the fundamental rights of citizens. Article 2 of the Constitution could be deprived of all "its content through this process and the Courts would cease to be guardians of the nation's liberties." "(P. 393).‑On that view, it is clear that `satisfaction' of the detaining authority acting under rule 32 must be a state of mind, which has been induced by the existence of reasonable grounds for such satisfaction. The power of an authority acting under rule 32 is therefore no more immune to judicial review than is the power of a Police Officer acting under rule 204." "(Pp. 88‑389).‑A similar construction must be placed in my view upon the words "suspects on grounds appearing to such authority to be reasonable" that have been employed in sec tion 3(2)(x) of the Ordinance. Even under these words, rules may therefore be made which enable action to be taken on grounds of direct knowledge, inferential conviction, or reasonable belief. It is in that light that rule 32 falls to be construed. Its wording follows a provision in clause (x) enabling the making of rules for the detention of persons "with respect to whom (such) authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner", e.g. in a manner prejudicial to the maintenance of public order. This rule requires a stronger ground for action than mere suspicion, however, reasonable. For the making of an order of detention of any person, it is necessary that the detaining, authority should be "satisfied in relation to such person, that it is necessary to make such an order for the purpose of preventing him from acting in a prejudicial manner, e. g. acting so as to disturb the public order. There must be in the mind of the detaining authority a belief that the person in question is either about to act or is likely to act in the aforesaid manner ; only so can the word "satisfied" be construed. Preventive action is called for only by imminent and real necessity, under this rule." "(Pp. 389‑390).‑The ascertainment of reasonable grounds is essentially a judicial or at least a quasi‑judicial function. It is too late in the day to rely, as the High Court has done, on the dictum in the English case of Liversidge for the purpose of investing the detaining authority with complete power to be the judge of its own satisfaction. Public power is now exercised in Pakistan under the Constitution of 1962, of which Article 2 requires that every citizen shall be dealt with strictly in accordance with law. If then rule 32 owes it vires to section 3(2) (x), it must follow that by the use of the words "reasonable grounds" clause (x) has unmistakably imported into this rule, controlling the exercise of public power, the requirement that to gain the protection of the rule for its action thereunder, the authority should be prepared to satisfy the Courts, to which the subject is entitled to have resort for determination of the question whether he has been treated in accordance with law, that it has acted on reasonable grounds." "(P. 399).‑Against this must be considered the duty resting upon the authorities, operating under law, for the maintenance of public peace and order. They would not be justified and the public interest would certainly be defeated, if they were to allow such a dangerous experiment to be carried out. Inevitably there would be breaches of the public peace and there was no means of calculating to what extent they might not be carried." These being the principles laid down in Ghulam Mani's case by the Supreme Court of Pakistan, let us now examine the docu mentary material placed before us to see if severally or collectively they could be said to have furnished reasonable grounds for the satisfaction of the detaining authority as expressed on the face of the impugned detention order.

13. Exh. 2, which was the first document in the series, was in fact a covering letter addressed by Mr. Yar Muhammad, Superintendent of Police, Special Branch, Karachi to the Deputy Commissioner, Karachi wherewith he forwarded the report of Mr. Muhammad Ayoob Qureshi, Deputy Superintendent of Police, C. I. A. Special Branch, Karachi regarding the activities of the petitioner. In substance the report of Mr. Qureshi was that as a result of the investigation, in relation to First Information Report Exb. 8, six persons had been arrested (and since released on bail by the Supreme Court of Pakistan) and more seditious literature discovered. That one of the arrested accused, namely, Abdur Rahim had made confession before the Court that he in complicity with others had been writing "Young Democrat" pamphlets in support of the Baluchi Movement, which had defied law‑and‑order in many parts of Quetta and Kalat Divisions. The two other accused persons, namely, Akbar Barakzai and Juma Khan Bluch, were said to be residing in Middle East from where they have been secretly sending similar seditious matter to Pakistan. That somewhere in the last week of June and the second week of July 1966, the said six accused persons had visited the petitioner at his house in P. E. C. H. Society, Karachi in connection with Baluchi Movement, although it could not be known as to what transpired between them. The report lastly mentioned that after having taken into consideration the previous activities of the petitioner, i.e. was evidently a link between the leaders of Baluchi Movement in Baluchistan Area and the Baluchis of Karachi and was connected with anti Government activities. Mr. Yar Muhammad, Superintendent of Police, Karachi, whose opinion in Exh. 2 was obviously based on the report of Air. Qureshi, clearly stated that there was no direct proof that the petitioner was guilty of arty seditious activities, but all the same he urged upon the Deputy Commissioner that action should be taken against him either under West Pakistan Maintenance of Public Peace and Order Ordinance or under the Defence of Pakistan Rules. These being the contents of Exh. 2 and of the report of Mr. Muhammad Ayoob Qureshi, could it tie said that they really furnished reasonable basis upon which Mr. Ahmad Sadiq, the detaining authority, or for that matter any reasonable man in his position, would have been satisfied that imminent and real necessity existed in justification of the impugned action. We have no hesitation to say that the answer must be in the negative. Admittedly, when Abdur Rahim accused made confession before the Court, he not only did not mention the name of the petitioner, but stated that the seditious pamphlets were published by him in complicity with others. He further stated that one Akbar Barakzai and Juma Khan, who were residing in Middle Eastern Countries, were also printing similar pamphlets, which were then brought into the country. The only circumstance upon which Mr. Yar Muhammad recommended to the Deputy Commissioner that the petitioner be detained was the report of Mr. Qureshi that the six accused persons had visited the petitioner at his residence in P. E. C. H. Society in the last week of June and the second week of July 1966. It is noteworthy, however, that even this circumstance was not within the personal knowledge of .k Mr. Qureshi according to whose report he had "reliably learnt". Furthermore, no evidence was brought on record to show as to what were the antecedent undesirable activities of the petitioner, of which Mr. Qureshi had made a mention in his report, so ,1' that a presumption of seditious activities could be raised against the petitioner after the six accused persons allegedly visited him at his house. In that view, Exh. 2 and the report o Mr. Qureshi appeared to us to be based on mere conjectures which, in our opinion, could not furnish any reasonable basis for the satisfaction of the detaining authority in regard to the ;impugned action.

14. Exhibit 3, the next document in the series, was the report of Mr. Nisar Ahmad, P. S. P. Superintendent of Police, East Division, Karachi submitted to Mr. Ahmad Sadiq, the detaining authority. It starts with the introduction of the petitioner describing him an ex‑M. P. A., who was residing at 19‑B, Block 6, P. E. C. H. Society, Karachi. Thereafter, the report alleged that the petitioner (as lately discovered) was in league with an anti‑social group, "who has been indulging in acts of lawlessness" and according to reports he has been inciting people to commit acts of violence with a view to creating law and order situation and thus paralysing the administration. It went on to allege that there was no doubt of his association with the said anti‑social group, although no sufficient evidence could be brought on record on the basis of which action could be taken against him. It further alleged that a shrewd person as he was he did not directly involve himself in any of acts of violence and lawlessness, but his hand in the same was nevertheless quite obvious. It further alleged that his activities were especially intensive in the second and fourth week of July 1966, during which period the police had to be extra vigilant to prevent disturbance of peace on a large scale. It lastly alleged that since it was not sufficient to take him to task for lack of sufficient evidence, it was requested that suitable action may be taken against him by the Deputy Commissioner. By scrutinising the contents of this document, we have not been able to understand as to how does it implicate the petitioner? According to the author of this report, the petitioner was lately discovered to be in league with an anti social group, which was indulging in acts of lawlessness, yet no indication was given as to its identity or of the objectionable activities of which the petitioner was accused. Similarly, no indication was given to show as to who were the people who, according to the author of the report, had been incited by the petitioner to commit acts of violence with a view to "paralysing the administration." Notwithstanding these facts, however, the author of the report in question appeared to be convinced that there was no doubt about the petitioner's association with the said anti‑social group although, according to him, he had not directly involved himself in acts of violence and lawlessness, and the was no evidence on record on the basis of which action could be taken against him. Apart from the fact that the report in question did not in the least involve the petitioner, Mr. Ahmad Sadiq in his evidence did not even attempt to disclose the identity of the anti‑social group or the nature of the objection able activities of which the petitioner was accused in that report, Consequently, these vague and self‑contradictory allegations could not possibly furnish any reasonable grounds upon which the satisfaction of the detaining authority could be said to have been induced, so as to justify the impugned action under rule 32 of the Defence of Pakistan Rules which, according to the Supreme Court "requires a stronger ground for action than mere suspicion however reasonable."

15. Pamphlets Exhs. 4, 5 and 6 were undoubtedly couched in a language which was not only highly seditious, but was designed to excite armed rebellion against the Government established by law. They contained a running commentary upon the alleged misfortunes of Baluchi population of Baluchistan which, according to their authors, were brought about by the present Government. Furthermore, they contained extremely offensive, disparaging and derogatory comments against the: high placed dignatories of the State who were described as, oppressors and tyrants. However, no evidence was brought on record to show that the petitioner was in complicity with the authors of these phamphlets or was responsible for its circulation. Mr. Muhammad Haleem, the learned Assistant Advocate General, referred to the last para of pamphlet Exh. 4 and to a passage (from page 3) Exh. 5 where mentioned was made of the name of the petitioner and argued that this by itself was sufficient to connect the petitioner with these pamphlets. We were not impressed by that argument for the reason that besides the name of the petitioner, Exhs. 4 and 5 also mentioned the name of Moulana Abdus Sattar, Attaullah Khan Mangal, Akbar Khan Bughti and Iihair Bukhsh Muree, and therefore if the argument of the learned Assistant Advocate‑General was to be accepted then all these persons must equally be presumed to be accomplices in publishing and circulating these pamphlets. Surely, no action appeared to have been taken on that score against any of these persons, and we have not been able to find any reason as to why the petitioner alone should have been, picked upon for publishing and circulating these pamphlets. In point of fact, according to the report of Mr. Qureshi, the responsibility for printing and circulating these pamphlets was. already fixed on the six accused persons, one of whom, namely,. Abdur Rahim had made confession before the Court in that respect. It was an admitted position that at no stage of the investigation in regard to First Information Report Exh. 8, the name of the petitioner had transpired nor was he made an accused in those proceedings. In that view of the matter, we are not inclined to raise any presumption against the petitioner that just because his name appeared in these pamphlets he was necessarily an accomplice to their printing and circulation.

16. The learned Assistant Advocate‑General lastly referred' to par a. 4 of the petitioner's supplementary counter‑affidavit of 1‑7‑1968, where in relation to his Assembly speech Exh. 7, he alleged that "the same speech was translated in Arabic, printed and circulated in Arab Countries. The same speech was also translated in English, printed in Cairo and circulated among all the members of the United Nations in New York. But all this was not my doing though there was nothing wrong in it if I did it", and "I admit that I have said in my Assembly speech that `we have revolted against tyranny and we would continue doing so', but I repeat here with all the emphasis at my command that I will always revolt against tyranny and to revolt against tyranny is not sedition under any law in Pakistan" and argued that these assertions sufficiently indicated the proclivities of the petitioner, so as to leave no room for doubt that he was in some measure responsible for the publication and circulation of these pamphlets. There was no force in that argument. The petitioner had delivered that speech on the Floor of the West Pakistan Assembly and the very fact that the Speaker had permitted him to do so, it must be presumed that according to the Rules of the House it was considered unexceptional. In any case, the petitioner was then an elected Member of the said Assembly, representing one of the Constituencies of Baluchistan region, and the speech in question, which exclusively dealt with the alleged conditions of that area must be said to have been delivered in the discharge of his constitutional duties to his electorate. Consequently, we have not been able to appreciate the relevancy of that speech in the present proceedings. In that view of the matter, the subsequent translation of that speech in English and its circulation amongst the Members of the United Nations, for which the petitioner had disowned the responsibility, would be wholly immaterial notwithstanding the petitioner's opinion that even if he was responsible for the said circulation there was nothing wrong in it. Similarly, no exception could be taken to the assertion of the petitioner that he would always revolt against tyranny, as admittedly there existed a written constitution in the country which held out solemn guarantees against all forms of tyranny and oppression. Therefore, so long as a person was to agitate against any tyranny (provided it existed as a fact) within the framework of the Constitution and law, his conduct would be unexceptional.

17. Pamphlet Exh. 7 is the speech of the petitioner to which reference has been made in the preceding para. No doubt its main object appeared to be to accuse the present Government of oppression and tyranny vis‑a‑vis the Baluchi population of Baluchistan, bat for reasons stated in the preceding para. we have not been able to understand its relevancy in the present proceedings. It may be mentioned that the speech in question was made sometime in the year 1963‑64 (its exact date having not been established), yet the authorities did not take any action against the petitioner (assuming that any action was called for) until he was detained on 11th August 1966. How then, we wonder, could reliance be placed upon that speech almost two years later when the petitioner was ordered to be detained. Perhaps reference to the speech in question might have been pertinent to show the continued hostile mind of the petitioner against the Government established by law, provided there existed some evidence against him in these proceedings, so as to connect him with the publication and circulation of the offending pamphlets. Since no such evidence was brought on record, reference to that speech was wholly immaterial.

18. The last document in the series was Exh. 8, which was a copy of First Information Report lodged at Arambagh Police Station in 1965, after pamphlet Exh. 4 was intercepted in circulation by the Police. This document not only does not mention the name of the petitioner, but is wholly silent as to who were the accused persons responsible for the publication and circulation of the various offending pamphlets. According to the report of Mr. Qureshi, one of the six arrested accused persons, namely Abdur Rahim had made confession before the Court that he and few others were responsible for publishing and circulating these pamphlets in support of the Baluchi Movement, apart from the fact that two other accused persons (Akbar Barakzai and Juma Khan Baluch), who were residing in Middle East, were also printing similar pamphlets and were sending them to Pakistan. Admittedly, the petitioner was not cited as an accused in that case nor was his name mentioned at any stage of the proceedings. In that view of the matter, reference to Exh. 8 was wholly immaterial, and we hold that it could not furnish any basis upon which the detaining authority could be said to have been satisfied before passing the impugned order. It may be pertinent to mention that while scrutinising the documentary material placed before us by the respondents, we were conscious of the fact that we were not sitting in appeal in regard to the impugned action of the detaining authority, so as to entitle us to supplant his opinion by our own opinion. We were also conscious of the fact that the detaining authority, upon whom rested the duty under law for maintaining public peace and order, was required to act in a situation of "imminent and real necessity", and yet for his action of detaining a citizen under rule 32 of the Defence of Pakistan Rules he should be prepared to satisfy the Court that he had acted on reasonable grounds and according to law. There was no doubt that the duty was onerous; inasmuch as on the one hand the detaining authority had to be mindful of the maintenance of public law and order and on the other he was obliged to respect the liberty of the citizen as guaranteed by the Constitution. It is true that while acting within the said bounds of his duties and obligations, the detaining authority might at times be baunted by the extreme sense of anxiety not to overstep the prescribed bounds, all the same it cannot be gainsaid that by the proper application of his mind to the facts of a given case he would be able to act properly and in accordance with law. After all what he was required to do was to avaluate the situation, in which he was required to act, and to decide if "imminen and real necessity", including reasonable grounds upon which to his satisfaction might be induced, existed to take the required action. So long as he could satisfy the Court that these elements existed, prior to taking the impugned action, his order would be unexceptional. In regard to action under rule 32 of the Defence of Pakistan Rules, the Supreme Court was pleased to observe that: "it requires a stronger ground for action than mere suspicion however reasonable." In the instant case, we have not been able to find any ground, much less a stronger ground, so as to justify the impugned order passed under rule 32 of the Defence of Pakistan Rules. In fact, the detaining authority appeared to have acted on mere suspicion, and therefore (regardless of the reasonableness of that suspicion), the impugned order must be held to have been passed in violation of the requirements of law.

18. It will have been noticed that in order to justify an action under rule 32 of the Defence of Pakistan Rules, the detaining authority was required also to prove the existence of "imminent and real necessity". Let us, therefore, examine the facts of the instant case to see if these elements really existed before the impugned action was taken by the detaining authority. Mr. Ahmad Sadiq stated in his evidence that in support of the Baluchi Movement robberies and dacoits had been committed in the neighbouring District of Lasbella which convinced him that in case action was not taken against the petitioner they might have repercussion on the law and order situation within the District of Karachi. He went on to state that after Exh. 4 was intercepted by the Police and as a result of investigation in relation to First Information Report Exh. 8, six persons were arrested, he was further convinced of the desirability of detaining the petitioner. He further stated that prior to the passing of the impugned order he had promulgated section 144, Criminal Procedure Code in the District of Karachi, as the conditions then prevailing warranted that action. He lastly stated that the petitioner's Assembly speech (Exh. 7) had particularly convinced him of the desirability of the impugned action. In cross‑examination he stated that he could not name any dacoits or robbers, who were responsible for committing crimes in the District of Lasbella nor did he know as to which tribe they belonged. He further stated that he did not know if any person had been challaned for committing those crimes. He went on to state that he did not know as to which part of the population of Baluchistan was anti‑One Unit nor did he know who were responsible for the Baluchi Movement. According to him, no significant law and order situation had arisen within the ‑District of Karachi when he was the District Magistrate. He lastly stated that the offending pamphlets in question bad been in circulation since 1965, but it was a continuous process. He admitted, however, that the contents of the offending pamphlets were not known to public, as they were circulated to individuals through post and were not published. He was not aware, however, as to who were the individuals to whom these pamphlets were circulated.

19. These being the entire facts which, according to Mr. Ahmad Sadiq, had convinced him to detain the petitioner under rule 32 of the Defence of Pakistan Rules could it really be said that they constituted a situation of "imminent and real necessity"? We have no hesitation to answer that question in the negative. Admittedly, the offending pamphlets had been in circulation since 1965, and yet not one instance was cite to show that they had affected the law and order situation within the District of Karachi. Similarly, Mr. Ahmad Sadiq ascribed the commission of dacoities and robberies in the neighbouring Districts of Lasbella to the Baluchi Movement, yet he could not even define what that movement was and who were the people responsible for that movement. He failed even to name a single dacoit or robber involved in the commission of those crimes nor did he know if any one of them was arrested. In fact, he did not even know as to who these criminals were or to which particular tribe they belonged. In this view of the matter, we have failed to understand as to how Mr. Ahmad Sadiq, the detaining authority could have possibly connected the petitioner with the commission of those crimes apart from the fact that such crimes are seldom committed as a matter of organised political movement. The next ground upon which Mr. Ahmad Sadiq appeared to have been particularly satisfied as to the desirability of the petitioner's detention was his Assembly speech Exh.

7. Admittedly, the speech was delivered sometime in the year 1963‑64, and yet the authorities never took action against the petitioner for about two years. Assuming that any action could be taken against him on the basis of that speech, which, as a Member of the West Pakistan Assembly, he had delivered on the Floor of the House, even then what was the "imminent and real necessity" to resort to an action under rule 32 of the Defence of Pakistan Rules against the petitioner? In other words suppose the petitioner was. not detained on 11th August 1966, what could have conceivably happened? To venture an G answer it might be said that a few dozens or more of these pamphlets might have found their way into the hands of certain persons within the District of Karachi, even then how could that precipitate a situation which could be called "imminent and of real necessity". After all these pamphlets were in circulation since 1965, and yet admittedly they had brought about no .adverse change in the law and order situation of the District. Therefore, the circulation of a few dozens or more of these pamphlets could not have rendered the situation any worse, so as to have necessitated the impugned action.

20. Before parting with this aspect of the case, it would be pertinent to recall the facts in Ghulam Jilani's case with a view to showing as to what would be imminent and real necessity, so as to justify an action under rule 32 of the Defence of Pakistan Rules. After the news of signing of Tashkent Declaration was broken to the people of this Country, it gave rise to feelings of strong resentment amongst certain sections of the people all over West Pakistan, including Lahore. As a mark of protest processions were taken out by students at Lahore in violation of an order under section 144, Criminal Procedure Code which resulted in violence, causing injuries to a number of police officers and extensive damage to ‑ public and private property. Three more processions; one on the 14th, another on the 16th and the third on the 18th of January 1966 were taken out in that city under the auspices of the Combined Opposition Parties followed by a conference of their leaders which was held at the residence .of one of the political leaders on 5th February 1966 at Gulberg. As a result of that conference a committee of five persons was appointed to work for freedom and democracy and to secure radical changes in the Constitution. It was upon these facts ,that three leaders of the Combined Opposition Parties, including Ghulam Jilani, were arrested and detained under rule 32 of the Defence of Pakistan Rules. Except Nawabzada Nasrullah Khan, in whose case the order of detention was held illegal on the ground of lack of jurisdiction of the detaining authority, the action of the detaining authority in regard to Malik Ghulam dilani and Sardar Shaukat Hayat Khan was upheld and their appeals dismissed by the Supreme Court.

21. Reference may be made to two other judgments; one .of this Court and another of the High Court of East Pakistan. In the reported case Mirza Chughtai v. Government of West Pakistan arid another (P L D 1968 Lah. 728), the facts were these. On 31st January 1967, the railway workers of West Pakistan Railways, under the leadership of their Trade Union leaders struck work and paralysed the railway communication at a time when the entire Province of West Pakistan was faced with acute food shortage and the Government was seriously engaged to rush food supplies from the port of Karachi to the deficit areas of the Province. In an effort to bring about a settlement with the workers, the Government entered into serious negotiations with their Trade Union leaders, but the deadlock could not be resolved. During the course of strike, the workers had resorted to violence at certain places in West Pakistan and at least on one occasion Army was called to control the situation. Damage to railway property was also reported from various places in West Pakistan. Faced with this situation, three Trade Union leaders were arrested and detained under rule 32 of the Defence of Pakistan Rules on the ground that they were responsible for inciting the workers and for continuing the strike. The detenu challenged their respective detentions by filing writ petitions in the High ,Court under Article 98 of the Constitution, but they were dismissed.

22. In the reported case of Rezaul Malik v. Government of East Pakistan and others (P L D 1968 Dacca 382), the facts were these The detenu, as President of East Pakistan Awami League, after announcing the famous six‑point programme, set out on a compaign of making public speeches which tended to create "hatred between East and West Pakistan and against the Government established by law. He even advocated the implementation of his programme, if necessary, by violence. After having addressed sizable gatherings from public platforms, he was arrested and detained under rule 32 of the Defence of Pakistan Rules. He challenged his detention by filing writ petition in the High Court of East Pakistan which was dismissed, but on appeal the Supreme Court of Pakistan remanded the case to the High Court for disposal according to the principles enunciated in Ghulam Jiluni's case. The majority of the learned Judges of the Full Bench, who heard that petition, dismissed it, holding that under the circumstance the impugned action of the detaining authority was justified.

23. It would be seen that the facts in Ghulam Jilani's case and in these two cases were of the kind in which there existed "imminent and real necessity", justifying an action under rule 32 of the Defence of Pakistan Rules and therefore, if the authorities, upon whom rested the duty under the law for maintaining public law and order were to allow (to quote from Ghulam Jilani s case): "Such a dangerous experiment to be carried out. Inevitably there would be breaches of the public peace and there was no means of calculating to what extent they might not be carried." In the instant case, however, no such facts existed, which could[ be said to constitute a situation of "imminent and real necessity", E so as to warrant taking an action under rule 32 of the Defence of Pakistan Rules.

24. Mr. Muhammad Haleem, the learned Assistant. Advocate‑General, however, argued that at least in the case of Malik Ghulam Jilani there was no overt act of which he was accused and yet the Supreme Court of Pakistan came to the conclusion that, under the circumstances, his detention was. justified. In effect, his argument was that although there was no overt act of which the petitioner could be said to have been accused in the present proceedings, all the same in line with the facts of Ghulam Jilani's case no exception could be taken to the impugned action of the detaining authority. There was no force in that argument for the simple reason that in the case of Malik Ghulam Jilani the Supreme Court of Pakistan came to the conclusion ‑that he was a consenting party to all the resolutions passed in the conference held on 5/6th February 1966, although admittedly he made no speech on that occasion. The Supreme Court further came to the conclusion that Malik Ghulam Jilani, who at the relevant time, was at Karachi and was about to go, to Dacca, cancelled his programme and returned to Lahore on the 12th of January 1966, and thereafter conferred with Sardar Shaukat Hayat Khan and Moulana Abul A'la Moudoodi, when, it was decided to hold a Press conference on the following day. In fact, that was the day of the first disturbances and the Press conference in question was actually held at which it was, announced that all parties' conference would be held in the first week of February 1966. Obviously, there was no parallel between these facts and the facts of the present case. Mr. Haleem next referred to the evidence of Mr. S. I. Mahmood, the present Deputy Commissioner, Karachi (who had stated that the petitioner's brother Dr. Abdul Majeed D. W. 1 had made an application for an interview with the petitioner and had stated that his purpose was to dissuade his brother from objectionable activities, and argued that this sufficiently indicated that the impugned order was passed for justifiable reasons. There was no force in that argument. In the first place, according to Mr. Mahmood, the said application was sub sequently withdrawn, and in the second place the petitioner had disowned that application as per Exh. 21 on record. In any case, the said application was moved by the brother of the petitioner, and even if the statement in question was made in that application, that would not be binding on the petitioner. Furthermore, the statement in question having been made long after the impugned detention order could not possibly lend any ex post facto validity to it, if it was not found to be otherwise valid.

25. It may be mentioned that Mr. S. K. Mahmood, the present Deputy Commissioner, Karachi gave evidence in justification of the desirability to continue the petitioner's detention, but the attempt appeared to us to be misconceived. Admittedly, the petitioner continued to be detained under the only order passed on the 11th of August 1966, and consequently it was the legality of that order alone which fell for determination in these proceedings. In any case, Mr. Mahmood admitted in his evidence that his opinion, as to the desirability of the petitioner's continued detention, was based exactly upon the same material on which Mr. Ahmad Sadiq had passed the impugned order. Since we have already come to the conclusion that the said material could not furnish any reasonable grounds for the satisfaction of the detaining authority, for the same reasons we hold that they would be insufficient for continuing the petitioner's detention.

26. It would be recalled that the validity of the impugned order was questioned on a number of grounds, as set out in the earlier part of this judgment, all of which, except those alleging male fides or that the impugned order was passed for collateral purposes or upon wholly fictitious ground, were dealt with in the remand order by the Supreme Court of Pakistan and repelled. Consequently, we were required to deal only with those grounds which were not considered in the remand order keeping in view the principles enunciated in Ghulam Jilani's case. After having examined the material upon which the detaining authority was satisfied we now proceed to examine the remaining grounds. For that purpose reference may be made to the relevant allegations made in the petition. It was alleged in the petition that the impugned order was passed on fictitious and imaginary grounds and for wholly ulterior purposes simply to victimize the petitioner, as he had married Shahida Sulleman, the grand‑daughter of late Mr. Hussain Shaheed Suhrawardy, without the consent of her parents. In the lengthy petition, extending over about ten typed pages, mention was made of certain irrelevant topic, such as the petitioner's experience at the hands of two Military Intelligence Officers, but the same not being germane to the consideration of these grounds would be ignored for the sake of brevity. We shall, therefore, confine ourselves to the examination of the following allegations which appeared to be relevant for the consideration of the present question:‑ "(i) That the order of the petitioner's detention had been secured by some interested persons in collaboration with bureaucrats; (2) That the petitioner should have been proceeded against under sections 107 and‑ 144, Criminal Procedure Code instead of detaining him under rule 32 of the Defence of Pakistan Rules, even if the authorities were satisfied that by was indulging in illegal activities; (3) That during the relevant period, the petitioner was not a Member of any political party and was in fact engrossed in his "amorous and matrimonial affairs" with Shahida Sulleman and therefore, he had no occasion to indulge in any illegal activities or to have incited others for the same purpose; (4) That his legitimate request for an exit permit to go to Kuwait to do business was refused by the detaining authority notwithstanding the fact that he had made a complaint to the Chief Secretary and the Central Home Minister about his conduct and that of the Commissioner of Karachi with whom he had quarrelled after they refused to grant him that permit." The petitioner, had lastly alleged that he could not disclose anything more in writing, and that he could do so in person " in camera" at the time of hearing after consulting his wife to prove the hidden hand of the American C.I.A in the intrigue of his detention.

27. These allegations were denied by Mr. Ahmad Sadiq; the detaining authority in his affidavit dated the 23rd of January 1967, who maintained that the impugned order was passed on credible and reliable information, which was placed before him by the law‑and‑order enforcing agencies of the Government. In his rejoinder dated 23rd January 1967, the petitioner for the first time introduced fresh material and alleged that the impugned action bad been taken mala fide simply to satisfy the grudge of Begum Akhtar Sulleman and her husband against him and to facilitate the frustration of his marriage with their daughter Shahida. It was further alleged that Begum Akhtar Sulleman had met the President on 17th July 1966, and the fact that she garlanded the President on the 18th of August 1966, was a circumstance to indicate that he was detained to oblige Begum Akhtar Sulleman and her husband to obtain their political support. It was further alleged that on or about 21/22nd June 1963, he had delivered a speech on the Floor of the West Pakistan Assembly demanding the impeachment of the President for surrendering about 3000 sq. miles of Pakistan territory to Iran and for offering joint defence with India. It vas lastly alleged that in his public statement of the 1st week of February 1965, he had accused the then Governor of West Pakistan late Nawab Kalabagh, for an attempt to assassinate him at Lahore in complicity with certain other persons. These allegations were squarely denied not only by Mr. Ahmed Sadiq by way of further affidavit but also by Mr. Muhammad Khan Junejo, Sub‑Divisional Magistrate, Karachi and Mr. Muhammad Ayoob Qureshi, the Deputy Superintendent of Police, who filed separate affidavits for that purpose. The learned Judges of the Division Bench, who had earlier dismissed this petition, had disbelieved the petitioner's allegations on the point of mala fide amongst others, on the ground that at no stage of the proceedings until 23rd January 1967, was any mention made of those allegations. We respectfully agree with that conclusion, and hold that there was no substance in the allegations of mala fides. The very fact that no action was taken against the petitioner in view of his speech made in the West Pakistan Assembly in June 1963, and another statement in the first week of February 1965, was by itself sufficient to repel all his allegations of mala fides. Furthermore, it was the burden of the petitioner to prove those allegations, but in spite of the fact that he had stated in his petition that he would do so during the course of the trial in camera, he did not step into the witness box nor produced any evidence notwithstanding the fact that the proceedings were held in camera. It is a well‑known principle of law that the allegations of mala fides, like all other allegations, must be proved, failing which the actions of the Government and its agents must be presumed to have been taken bona fide. If any authority was needed for that conclusion, reference may be made to a reported judgment of the Supreme Court Sai Muhammad v. West Pakistan Province (P L D 1958 SC (Pak) 181), where it was held that: "The correct attitude in estimating the actions of Govern ment is indeed that they must be regarded as having been taken bona fide until and unless the contrary is established."

28. Mr. Khalid M. Ishaq in an effort to prove that the impugned action was taken wholly for ulterior purposes and on false and fictitious grounds, relied upon certain circumstances emerging from the evidence of Mr. Ahmad Sadiq and Mr. S. K. Mahmood, the present Deputy Commissioner, Karachi. According to the learned counsel, admittedly the existence of the offending pamphlets was not mentioned at any stage of the proceedings until 25th June 1968, when for the first time Mr Ahmad Sadiq made their mention in his affidavit, and consequently it must be presumed that they were not in existence at the relevant time, but were manufactured long after the impugned order was passed. He further argued that in the grounds mentioned in the impugned order no reference was made to the petitioner's activities in support of the Baluchi Movement and the fact that Mr. Ahmad Sadiq in his evidence mainly relied upon that fact in support of his impugned action was another circumstance to show that the offending pamphlets in question were simply manufactured. As against this, Mr. Muhammad Haleem, the learned Assistant Advocate‑General stated that since at the very initial stages of these proceedings, Mr. Ahmad Sadiq had claimed privilege from producing the offending pamphlets and the secret reports upon which he had relied for his satisfaction, there was no occasion for him to have disclosed these documents until in line with the requirement of law, as enunciated in Ghulam Jilani's case, they were produced for the scrutiny of this Court. Therefore, according to the learned counsel, no legitimate adverse presumption could be drawn that these documents were not in existence at the relevant time or that they were manufactured. The contention appeared to have force. Admittedly, Mr. Ahmed Sadiq had claimed privilege from producing these documents and had filed an affidavit dated 23rd January 1967 for that purpose. In that view of the matter, there existed plausible justification for' Mr. Ahmad Sadiq not to have disclosed or mentioned the existence of these documents at any stage of these proceedings until he was required to place them before this Court in line with the requirements of law.

29. The main ground upon which the detaining authority appeared to have been satisfied was worded that: "Whereas I, Ahmad Sadik . . . . . on consideration of the reports and all other attending circumstances, am satisfied that Mir Abdul Baqi Baluch . . . . was engaged in inciting persons to acts of lawlessness, disaffection amongst people and encouraging persons to commit acts of violence against the Government established by law, in the district of Karachi and is likely to continue to be engaged in prejudicial activities which are likely to seriously disturb and endanger public peace and peaceful conditions in the District of Karachi." It would be seen that the order in question did make mention of the fact that the petitioner was engaged in inciting persons to acts of lawlessness disaffection and was encouraging persons to commit acts of violence against the Government established by law. Consequently, there was no room for argument that the alleged activities of the petitioner could not properly fall within the scope of the grounds mentioned in that order. In point of fact, the grounds in question, worded as they were, would conceivably encompass a large variety of undesirable activities, including the alleged activities of the petitioner, in support, of the Baluchi Movement. In any case, the detaining authority was not obliged to make mention of the facts upon which the grounds of the detention order were constituted, and consequently no adverse presumption could be raised against him on that account. So long as the material, upon which the detaining authority appeared to be satisfied in support of the detention order, appeared to be relatable to the grounds mentioned in the order itself, there would be no scope to raise any adverse presumption against the detaining authority. In view of these conclusions, there was no force in the petitioner's allegations that the impugned order was passed mala fide or for wholly ulterior purposes or on false and fictitious grounds. In spite of that position, however, we are of the view that for various reasons set out in the earlier part G of this judgment, the material upon which the impugned action was taken could not be said to have furnished any grounds, much less reasonable grounds, which, in line with the principles enunciated in Ghulam Jilani's case, could have induced the required satisfaction of the detaining authority in support of his impugned action under rule 32 of the Defence of Pakistan Rules.

30. In the result, we allow this petition with costs, quash the impugned order and direct that the petitioner be set at liberty forthwith. However the costs shall be proportionate as the petition was argued by Mr. Khalid Ishaq at the request of the Court. A. E. Petition allowed.